Hirdes v. Selvig

• Decision Date: 06 February 1963
• Docket Number: No. 88,88
• Citation: 369 Mich. 173,119 N.W.2d 537
• Parties: William HIRDES, Administrator of the Estate of Raymond Hirdes, deceased, Plaintiff and Appellee, v. Albert SELVIG, Defendant and Appellant.
• Court: Michigan Supreme Court

Page 537

119 N.W.2d 537

369 Mich. 173

William HIRDES, Administrator of the Estate of Raymond

Hirdes, deceased, Plaintiff and Appellee, v. Albert SELVIG, Defendant and Appellant.

No. 88.

Supreme Court of Michigan.

Feb. 6, 1963.

Luyendyk, Hainer, Hillman, Karr & Dutcher, Grand Rapids, for appellant.

James W. Bussard, Grand Haven, for appellee.

Before the Entire Bench.

DETHMERS, Justice.

Plaintiff, as administrator of the estate of his minor son, the decedent, brought this action for the boy's wrongful death. It resulted from the collision of an automobile in which he was a passenger with another owned by defendant and driven by the latter's son, who also was killed in the accident. In the automobile with plaintiff's decedent were two of his brothers, both of whom suffered amnesia as a result of injuries sustained in the accident and, at the of trial, recalled nothing about it. There were no passengers in defendant's car. There were no eyewitnesses to the accident able to testify as to how it occurred.

The collision happened in the afternoon of a bright, clear day, on a dry, 2-lane, 20-foot-wide, east and west, black topped highway having a painted center line. There was no hill, curve, or obstruction to view for 3/4 of a mile in either direction from point of impact. The automobile in which plaintiff's decedent was riding, hereinafter called plaintiff's car, was proceeding west. Defendant's automobile was going east. One of the passengers in plaintiff's car testified that his last memory was of riding at a point opposite a gravel pit, which was about 60 feet east from the place of the collision, and that they were then proceeding on the right or north half of the pavement, at a speed of about 50 or 55 miles per hour.

The collision occurred at or near the north edge of the pavement. After the collision the two automobiles came to rest facing north, more or less side by side, with their rear wheels on the pavement and front wheels on the north shoulder. Defendant's car stood west of plaintiff's car. Skid marks on the pavement's 156 feet in length, started in the south lane, proceeded easterly, crossed over the center line and extended into the north lane to point of impact. These were clearly made by braked wheels on defendant's car. Two police officers testified that skid marks on the pavement also extended southeasterly from plaintiff's car, for a distance of 59 feet from its right wheels and 75 feet from its left wheels, the latter going to a point about 10 inches south of the center line.

The jury found for plaintiff. The court denied defendant's motion for judgment non obstante veredicto and, in the alternative, for new trial. Defendant appeals.

The principal issue is whether there was evidence sufficient to go to the jury on the question of the negligence of defendant's driver and, if so, whether the verdict for plaintiff was against the great weight of the evidence.

Defendant first urges the presumption of freedom from negligence of the deceased driver of his car, inasmuch as there were no eyewitnesses who could testify, citing Weller v. Mancha, 351 Mich. 50, 87 N.W.2d 134, and Gillett v. Michigan United Traction Co., 205 Mich. 410, 171 N.W. 536. He insists there is no evidence to rebut it; none from which even an inference of his driver's negligence may be drawn; none to indicate excessive speed because the length of the skid marks is within the proper stopping distance under the applicable speed limit; none to show his failure to have the car under control when he applied the brakes while still on his own side of the pavement and before he started to skid as a result thereof. Defendant then cites Leonard v. Hey, 269 Mich. 491, 257 N.W. 733; Paton v. Stealy, 272 Mich. 57, 261 N.W. 131, and Eskovitz v. Berger, 276 Mich. 536, 268 N.W. 883, for the proposition that a driver is not negligent for skidding over onto the wrong side of the road unless the skidding results from his negligence. In each of those cases, that was held to be a question of fact. They do not support defendant's contention that there was no evidence to go to the jury on the question of his driver's negligence and that he is entitled to a no cause judgment as a matter of law.

Next, defendant cites Meisenheimer v. Pullen, 271 Mich. 509, 260 N.W. 756, and Triestram v. Way, 286 Mich. 13, 281 N.W. 420, as holding that crossing over to the wrong side of the road 'does not necessarily constitute negligence.' That statement does not, of course, exclude the possibility of a fact question in that regard. Furthermore, in Meisenheimer, the defendant, in driving (not skidding) to the wrong side of the road, was held guilty of negligence as a matter of law. Triestram affords defendant no greater support.

Defendant's theory, however, is that his driver was driving where he had a right to be when he suddenly applied his brakes, that the braking action caused him to skid to the left, that there is no showing that any negligence on his part necessitated the braking or caused the skidding, and that the skid marks south of the center line made by plaintiff's car give rise to a reasonable inference that, as little as 59 feet before place of impact, it was to the left of the center line, confronting defendant's driver with the necessity of suddenly applying his brakes. So defendant reasons that if any reasonable inference may be drawn as to negligence causing defendant's car to skid, it would have to be that of the driver of plaintiff's car in driving left of the center line.

A difficulty with defendant's position is that on this appeal, insofar as defendant's claim...